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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McPherson (AP) v Perth & Kinross Council [2001] ScotCS 20 (26 January 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/20.html Cite as: [2001] ScotCS 20

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[1] In this action which has been remitted by the Sheriff Court and which was debated on the procedure roll the pursuer seeks reparation on behalf of her son [J], in respect of loss, injury and damage arising from an incident in a playground of a primary school provided by the defenders as part of their responsibilities as education authority for their local government area. The incident occurred on 12 March 1997. At that time J was approximately 71/2 years old and was a pupil in Primary 3. The incident occurred in the lunchbreak while J was playing in the playground designated for the younger children in the school (Primary 1 - Primary 3). There is another playground for pupils in classes Primary 4 to Primary 7. According to the pursuer's averments in Article 2 of Condescendence what happened is this:

[2] In view of the averment by the pursuer of the alleged involvement of the Primary 7 boy, P, and what is subsequently contended, it is appropriate to set out certain of the defenders' averments in Answer 2 -

In relation to those averments regarding the "buddy" system, the pursuer's pleading response in Article 2 is to admit, without qualification, that "the school operated a buddy system" and for the rest those averments are denied.

[3] In Article 3 of condescendence the pursuer makes fairly extensive averments concerning various matters occurring prior to 12 March 1997. It is unnecessary to rehearse these in full detail. In summary, it is averred that prior to starting in P2, J suffered from alopecia; he had learning difficulties and was recognised as having special educational needs; on two occasions in P2 he came home with bruises; after Christmas 1996 there were three occasions on which the child came home with bruising to the groin and alleged that he had been kicked by classmates; and there were two occasions on which he returned home from school with facial bruises or grazes. It is averred by the pursuer that she spoke to the class teacher about each of these matters and that the class teacher agreed to "see to it". It is averred that the class teacher said to the pursuer on occasions that she had indeed spoken to the class about this. The identities of the three children said to have been involved in some of these earlier incidents are mentioned. Only one is averred to have been involved also in the incident which is the subject of this claim. In addition to making complaint to the class teacher the pursuer also avers that on the day before the assault she told the acting head teacher that "she had major concerns for her son's welfare since she believed the situation was becoming worse" and that she asked her for assistance in protecting her child from bullying. She further avers that the head teacher reassured her "that the situation was being dealt with and that there would be no re-occurrence (sic) of the problems faced by her child".

[4] Among other things it is also averred in Article 3 that the school had published a document setting forth its anti-bullying policy; that the school encouraged parents to report their concerns about bullying; that the acting head teacher had overall responsibility for the safety of children whilst in school and for playground supervision and had responsibility for implementation of policy on bullying. It is further averred by the pursuer at Closed Record 12C-D that:- "the school operated a 'buddy' system whereby a responsible older pupil was assigned to play with a younger, vulnerable child during playtime. After the incident the school arranged for increased playground supervision. The local lollipop man was asked to supervise at lunchtimes".

[5] Since the debate before me concerned the relevancy of the pursuer's averments, assuming them to be proved, it is of course unnecessary for me to set out in full the defenders' response. But, simply to assist in putting the arguments before me in some context, it may be mentioned, in brief summary, that the defenders aver that the child "was a boisterous, excitable child with a history of being antagonistically involved in altercations and fights with other pupils" and that although many matters were continually raised by the pursuer concerning her son's scholastic progress and needs, she did not make any complaint of his having been bullied by other children or of having displayed evidence of his having possibly been bullied by other children prior to the incident on 12 March 1997. The defenders also aver that in the Spring of 1997 it became necessary to employ a lollipop man for the morning arrival and afternoon departure of the children. His attendance was not required for the few pupils who went home for lunch, but, simply to make the post remuneratively attractive, the defenders added some supervisory lunchtime duties.

[6] Against that background of averment of fact, Miss Shand, who appeared for the defenders, contended that when one turned to the grounds of liability asserted against the defenders directly (Article 4 of Condescendence) and vicariously respecting alleged omissions on the part of the class teacher (Article 5 of condescendence) no relevant case had been pled.

[7] The particular grounds of fault averred against the defenders, in the context of the general duty of the defenders to take reasonable care for the safety of children while at school, are cast by the pleader in Article 4 of Condescendence in these terms:-

In relation to the first of these duties (the duty to take steps to identify and discipline wrongdoers) counsel for the defenders observed that, with one exception, the children involved in previous alleged incidents were not averred to have been involved in the incident on 12 March 1997. There was, she said, no specification of the particular investigatory steps contended for nor was there any specification of the nature of the disciplinary measures contended for. Nor was it evident that investigation would have identified the wrongdoer; or that any form of discipline envisaged would have in fact prevented the incident on 12 March 1997. Further, the duty was cast directly on the education authority and there was no attempt to place responsibility on a member of the teaching staff and apply a test of professional negligence indicated by reference to ordinary teaching practice. This branch of the pursuer's case accordingly lacked proper specification and was irrelevant.

[8] Before developing her submissions concerning the second branch of the pursuer's case, Miss Shand adverted to the contentions in the pursuer's pleadings that the defenders should have provided an increased level of playground supervision by engaging the services of a lollipop man and by briefing the playground supervisors to be particularly vigilant. These alleged duties had to be viewed against the pursuer's averment that neither of the supervisors employed for the purpose was present on duty in the playground. Among the defenders' concerns in defending this action, was the concern that, if they showed that the supervisors were present (as the defenders contended they were), was it to be suggested that three or more supervisors were required? If so, where, asked counsel, was the basis in averment for any practice or any other authority for having such a level of supervision? In the context in which it was alleged that the supervisors were not present at all (as to which no complaint was made) the suggestion that they should have been particularly briefed lacked any content.

[9] In relation to the second head, namely the duty "to take reasonable steps to protect the child by implementing the 'buddy' system and assigning an older child to play with [J] during playtimes", counsel for the defenders pointed out that if what was contended for were not merely the presence of an older child in the playground, but rather, an obligation to select an older child who would be required to play with J, and J alone, a factual basis for the assertion of such a duty was lacking. There were, she said, no averments of any general practice in any primary school of operating such an arrangement; nor were there any very special circumstances averred in the present instance plainly calling for the introduction of such an arrangement. In regard to the necessity that an assertion of the existence of a particular duty be based on a proper foundation of factual averment, counsel referred to Gibson v Strathclyde Regional Council 1993 S.L.T.1243. In the absence of averments of practice the circumstances required to be "special, exceptional and obvious" (Lord Weir, 1248). Reference was also made to Ahmed v City of Glasgow Council 2000 S.L.T.(Sheriff Court) 153. In the present case there were no averments to the effect that a practice of appointing an older child to play with a vulnerable child at every playtime was followed in any education authority or school. Nor was there anything apparent from the averments of prior incidents such as to provide very special circumstances making it obviously negligent for the defenders and their teaching staff to have omitted to have devised an arrangement whereby an older child was appointed to play specifically with J and act, in effect, as a supervisor or protector.

[10] Having invited the Court to hold the case advanced in Article 4 to be irrelevant, counsel for the defenders then turned to the case advanced against the class teacher. The averments made regarding the duties attributed to the class teacher are these:-

The short point made by counsel for the defenders was that the only duty effectively alleged was that of communication by the class teacher to the head teacher of the pursuer's reports to the class teacher, whereupon, it is averred on the pursuer's behalf, the head teacher would have taken the particular steps desiderated. However, the pursuer herself averred that she had made similar reports to the head teacher. Accordingly on the pursuer's own averments, the head teacher had indeed been given the information which the class teacher was charged with communicating. The complaints made against the class teacher were therefore of no relevance where, on the pursuer's own averments, the knowledge in issue had been conveyed to the head teacher by the pursuer herself. The essential assumption underlying the allegations against the class teacher was accordingly controverted by the pursuer's own averments. The vicarious case against the class teacher was therefore also irrelevant. The action should be dismissed.

[11] In responding to the argument for the defenders, Mr Marney, who appeared for the pursuer, began by submitting that the standard by which the actions or omissions of a teacher or an education authority were to be judged was that of the reasonably careful parent. In support of this proposition he referred to a tract of English cases namely, X v Bedfordshire County Council [1995] 2 A.C.633, 765; Van Oppen v Clerk to Bedford Charity Trustees [1990] 1 W.L.R.235, 250E; Carmarthenshire County Council v Lewis [1955] 1 All.E.R.565 (also reported in [1955] A.C.549); and Hippolyte v London Borough of Bexley [1995] P.I.Q.R.309. However, a dissenting view was to be found in England in Beaumont v Surrey County Council 66 L.G.R.580, in which Geoffrey Lane, J observed that to take, as the standard of duty of care of a school master, the standard of care which a reasonably careful and prudent father would take of his own children is unrealistic, if not unhelpful, when applied to an incident of horseplay in a school of 900 pupils. In regard to Scottish authority, reference was made by counsel for the pursuer to Gow v Glasgow Education Authority 1922 S.C.260 and especially the penultimate sentence in the opinion of Lord Sands. Counsel next turned to McDougall v Strathclyde Regional Council, reported in note form in 1996 S.L.T.1124, which, said counsel, might indicate a broader approach. In regard to Ahmed v City of Glasgow Council counsel for the pursuer submitted that the Sheriff Principal was wrong to conclude (155F) that the general nature of the duty of the school teacher was set out in the passage from Walker on Delict immediately previously quoted by the Sheriff Principal, and he further submitted that the Sheriff Principal was wrong to go on to opine that - "there may be cases where the practical consequence is to require the teacher to act with the same degree of care as a reasonably prudent parent, but that situation does not in my view arise when one is talking of supervision of a class of 25 to 30 adolescents. I see no benefit in attempting to formulate a test involving what a prudent parent would or would not do in that type of situation". Adverting to the circumstances of the present case, Mr Marney further submitted that, especially against the averred background of the child who had previously suffered alopecia and had poor social skills, a prudent parent would have investigated the prior incidents with a view to identifying those responsible. By making investigations into the earlier incidents and by taking such disciplinary steps as might be appropriate following such investigation, the subsequent playground behaviour of the children generally might have been beneficially influenced.

[12] In relation to the submissions made by counsel for the defenders concerning the duty of assigning another older child to play with J, counsel for the pursuer founded in particular on the averment for the pursuer at Closed Record 12C-D in which it is averred that "the school operated a 'buddy' system whereby a responsible older pupil was assigned to play with a younger, vulnerable child during playtime". It was, said counsel, accordingly the case for the pursuer that exactly such a system was in operation in this particular school. The gravamen of her complaint was simply that it had not been applied to her child when the prior history called for it to be applied. It was not part of the pursuer's case that the system of appointing an older child specifically to play with one other vulnerable child was one which was followed elsewhere in other schools but it was an institution which was established in the particular school attended by J. Further, in any event such a system was one which might be adopted by a reasonable parent. The presence of an older child playing with the vulnerable child would have an influence on the behaviour of the other children in the playground in that they would be less likely to bully the vulnerable child in the presence of the older, appointed playmate. In relation to the causal, deterrent effect of the presence of an older person upon the behaviour of children reference was made to Wilson v Sacred Heart RC School [1998] P.I.Q.R.145, 147.

[13] In these circumstances, it was submitted by counsel, what was averred was at least sufficient to warrant inquiry. It was not appropriate to dismiss any personal injuries claim on the basis of the relevancy of the pleadings other than in most exceptional circumstances - Miller v South of Scotland Electricity Board 1958 S.C.(H.L.) 20.

[14] In approaching the arguments advanced by counsel I have to observe at the outset that despite the pursuer's having averred that neither of the playground supervisors employed by the defenders was present in the playground at the time the pursuer does not make any case of fault based on the alleged absence of the supervisors during the lunchtime break. One might have thought that if it were the case that no one was present in the playground to supervise the children that might present an obvious prima facie avenue of criticism of the defenders, either directly or vicariously. But no such criticism is now advanced. I would add that it appeared from what was said by counsel for the pursuer during the course of the debate that the omission to advance such a case was not a matter of oversight but he appeared to feel unable to offer any explanation for this.

[15] In my view, the necessary implication of the acceptance by the pursuer that the absence of both supervisors employed to supervise the playground activities is not a matter of criticism is that heads 3 and 4 of the duties which she seeks to invoke are irrelevant. If the pursuer is unable to advance any criticism of the averred absence from the playground of the supervisors employed to supervise that playground, the suggestion that a further supervisor ought to have been employed is not comprehensible. If, contrary to what the pursuer avers, it were to be said that presence of two supervisors in the playground, or the complement of employed supervisors, was insufficient, to an extent constituting negligence, the necessary factual averments concerning practice and such matters as the appropriate ratios of supervisor to child are completely absent. Further, the suggestion that the supervisors, of whose absence no complaint is made, should have been briefed to be especially vigilant as regards J is equally misplaced. The supervisors being absent from the playground, it would not matter whether or not they had knowledge that, while in the playground, they should keep special watch over J. Counsel for the pursuer was really unable to advance any coherent response to these points and for my part I do not see any answer to what was said by counsel for the defender on these heads.

[16] I turn next to what may be labelled the "buddy case". The principal concern expressed by counsel for the defenders was that while the defenders accepted that there was a system whereby an older primary school child in P6 or P7 took a turn to play generally with the younger children, the duty contended for by the pursuer in Article 4 of Condescendence involved something quite different, namely the assigning of a particular older child to play specifically with a child previously identified as being vulnerable and thus to act in a supervisory or protective role towards that child. It was not a system plainly appropriate. Indeed, it had possible objectionable features. Accordingly, before it could be suggested that the school ought to have had such a system in place, it would be necessary for the pursuer to make and prove averments that other education authorities utilised such a system (cf in particular Gibson v Strathclyde Regional Council).

[17] In the event however counsel for the pursuer eschewed any invocation of practice elsewhere. He explained that the pursuer's case proceeded wholly on the averment at Closed Record 12C-D, already quoted, to the effect that the system of assigning an older child to play specifically with one child, identified as being vulnerable, was an institution which this school had already adopted. The pursuer's case was accordingly that in light of the previous incidents and other factors such as J's poor social skills and learning difficulties, this school's own policy of assigning an older child to play with (and inferentially to act as protector of) the vulnerable child had not been applied in a case in which it ought to have been applied by the school staff.

[19] Given that approach it is at first sight hard to see how the defenders, as an education authority, are to be faulted for not instituting a system which, on the explanation of the averment at 12C-D given by counsel had indeed already been put in place in the school in question. I have some sympathy with the defenders in their having evidently conceived the case against them to be that of a failure to institute a system. I regret to have to say that, in my view, the standard of the pursuer's written pleadings, generally, leaves much to be desired, both in terms of the underlying need for the pleader properly to analyse the legal issues involved and also in terms of the subsequent definition and communication of the party's case. In the event I think counsel for the pursuer readily recognised that, if the desiderated system were in place, the complaint becomes a rather different one, namely that there was a failure of professional judgement on the part of the appropriate member or members of the teaching staff at the school in not concluding, prior to 12 March 1997, that the pursuer's child was a child to whom an older pupil ought to be specifically assigned as playmate, and inferentially protector, in accordance with the system averred to be in operation at this school.

[20] One therefore turns to the case pled against the teaching staff as such, namely the case against the class teacher. The allegations against her are in essence that she failed to relay to the head teacher reports of a number of incidents involving harm to the pursuer's child. It is averred that, had those reports been relayed, the head teacher would have taken steps including (for immediate purposes) "assigning an older child to play with J during playtimes". The case pled for the pursuer may thus be summarised as proceeding on the factual hypothesis of the existence of a system of assignation of a specific "playmate" to play with a vulnerable child and as being that the class teacher was at fault by failing to act on reports of injury by relaying them to the head teacher who, it is to be assumed on averment, would have then appointed an older child to act specifically as playmate for J.

[21] The response of counsel for the defenders respecting case against the class teacher was to submit that it was in this context irrelevant since on the pursuer's averments the pursuer herself had spoken to the head teacher. However, in my view that involves a perhaps over-simplistic reading of the pursuer's averments. In so far as one is concerned with the communication of information to the head teacher regarding prior incidents in which the child was allegedly injured or attacked, it is, I think, apparent that all that is averred on behalf of the pursuer is that she spoke to the head teacher on the day preceding the assault which is the subject matter of the action. I do not consider that, simply on the basis of averment, one should equiparate the pursuer's making a report to the head teacher on the day preceding the incident with the passing of information from the class teacher at earlier stages following reports to the class teacher. For example, the former might well not allow sufficient time for the selection of a protective, appointed playmate.

[21] In the circumstances I have come to the view that this branch of the pursuer's case cannot properly be disposed of without inquiry. It will of course be appreciated that, at its outset, the pursuer's case on this branch is entirely predicated on her establishing her averment to the effect that this particular school had in place a system (quite distinguishable from that described by the defenders in their answers) for allocating an older child to play with a specific younger child previously identified as being vulnerable.

[22] There remains for consideration the contention on behalf of the pursuer that it was the defenders' duty to investigate the alleged prior incidents, to identify the wrongdoers and to discipline them appropriately. As I understood it, this aspect of the case was perhaps the principal focus of the submissions for the pursuer respecting the equiparation of the standard of care of the teacher or education authority with that of the reasonable parent contended for by counsel for the pursuer. Briefly, the starting proposition was that since a parent in charge of children, on learning that a child had been assaulted - or possibly assaulted - by another child would, take steps to identify the perpetrator of the alleged assault and on those investigatory steps being successful would take disciplinary measures against the offender. Accordingly those steps ought to have been taken in the present case, in light of the averred prior reports by the pursuer of incidents to her son while at school.

[23] While there are no doubt situations at school in which the hypothetical reaction or response of a parent may provide useful guidance as to the appropriate reaction or response to be asked of a teacher (the case of Hippolyte may be such an example) I have to say that I have reservations concerning its utility in relation to issues such as teaching policy, the general administration of a school, or the practice or policy to be followed by a school and its staff towards problems generally prevalent in the education of a large number of children, including problems such as those labelled as "playground bullying".

[24] However, in the event I have ultimately come to the view that it would be inappropriate in the present case to reach a concluded opinion on that matter simply on the basis of the pleadings. For the reasons already indicated a proof before answer is in any event necessary in relation to the "buddy" branch of the case. I am also conscious that in connection with the issue of the causal relationship between the allegations of fault respecting (a) the "buddy" system and (b) the "investigate and discipline" case and the incident on 12 March 1997 counsel for the pursuer in the course of his submissions submitted that both of these branches might operate together in the respect that both were said to affect playground behaviour. It is further to be noted that the defenders' position, as set out in the Closed Record 16D-17E, is that while the pursuer frequently sought to discuss her child's progress with staff at the school prior to 12 March 1997, she did not assert that her child was being bullied nor that there was any evidence that he might be being bullied. It is accordingly not said on the defenders' behalf that, had such reports been made by the pursuer, investigation and reaction in terms of guidance or proper behaviour would not have been appropriate. Nor, of course, is it said by the defenders that they sought to carry out such investigation or otherwise to react to the complaints. The appropriate extent of investigation and response is thus not directly in issue. Given the way in which these particular issues are focussed, I do not consider that there is sufficient substance in the complaints by defenders' counsel of lack of specification of the precise investigatory or disciplinary steps which might have been taken, to warrant exclusion of this branch from the scope of the inquiry before answer required in respect of the "buddy case", with which there would be a notable overlap in terms of the general areas of evidence involved..

[25] Accordingly, on the whole matter, I shall at this stage uphold the defenders' preliminary plea only to the extent of excluding the averment in Article 4, Closed Record 20B which is in these terms:-

and by excluding the same words where they occur in Article 5 of condescendence at Closed Record page 23B-C. For the rest I shall allow parties a proof before answer reserving otherwise the defenders' preliminary plea in its entirety.